United States District Court, D. Arizona
ORDER
HONORABLE DAVID C. BURY UNITED STATES DISTRICT JUDGE.
On
September 6, 2018, the Court considered the District's
assertion that it had attained unitary status for USP §
IX provisions, Facilities and Technology. The District
reported its development of two indexes, the Facilities
Conditions Index (FCI) and the Technology Conditions Index
(TCI), which are reviewed to determine capital expenditures
to be made under the Multi-Year Facilities Plan and
Multi-Year Technology Plan. The Court does not repeat here
its discussions related to the Special Master and
Plaintiffs' responses to the District's submittal for
unitary status, but after considering all the data and
arguments from all parties and the Special Master's
proposed completion plan, the Court ordered the District to
perform certain specific tasks to fully comply with § IX
of the USP. The Court ordered that Notices of Compliance
would trigger reconsideration of unitary status in the
context of determining whether any further measures should be
undertaken by the District pursuant to this USP provision.
(Order (Doc. 2123) at 138-140.)[1]
a.
Facilities
The
Court ordered the District to return to the original FCI
formula, including the Educational Suitability Score (ESS),
and recalculate the FCI scores based on the most recent FCI
data. The Court held that, “assuming those scores
demonstrate that Racially Concentrated schools do not have
lower FCI scores than those of non-racially concentrated
schools, the District shall have attained unitary
status.” (Order (Doc. 2123) at 139.) On August 30,
2019, the District filed a Notice of Compliance (Doc. 2264).
The
Mendoza Plaintiffs complain that the FCI Report, dated March
7, 2017, [2] does not reflect “the most recent
FCI data.” The District responds by filing “more
recent data, ” as provided on October 1, 2019, in an
appendix to the District's 2018-19 Annual Report (2018-19
DAR). Either way, the FCI report reflects that the District
has complied with the Court's order to revert to using
the original FCI formula and that the scores demonstrate
equity. There is no reflection in the data that Racially
Concentrated schools have lower FCI scores than those of
non-racially concentrated schools. The District's failure
to include the most recent FCI data in the Notice of
Compliance, assuming the data reflected in the 2018-19 DAR is
the most recent data, is indisputably a failure to comply
with a direct Order issued by this Court. The District
attacks the complaint of noncompliance by “[t]he
Mendoza Plaintiffs, who had full access to the data the
District was required to file.” The Court notes that
the Mendoza Plaintiff's Objection to the Notice of
Compliance Re: FCI was filed on September 20, 2019, and the
2018-19 DAR was filed on October 1, 2019. Compliance by the
District would have saved the Mendoza Plaintiffs and this
Court time which has been essentially wasted on a moot point.
The
evidence before the Court reflects two snapshots in time: one
on March 7, 2017, included in the 2017-18 DAR and another,
taken at some unknown time, included in the 2018-19 DAR. The
USP requires the District to assess the conditions of each
school site biennially: every other year. (USP (Doc. 1713)
§ IX.A.2.)[3] It does not matter that the District
instead keeps the FCI and ESS as living documents, updated on
an ongoing basis, and conducts assessments more than every
other year. The Court does, however, find that to avoid any
future wasting of time or confusion caused by the ongoing
nature of the updates to the FCI and ESS that all future FCI
reports shall be dated. The Court finds that the District has
complied with the directives of the completion plan set out
in the Order, issued September 6, 2018, for attaining unitary
status related to the USP § IX.A., Facilities Plan.
Technology
At the
time of the Court's September 6, 2018, review, the
parties had just agreed to revise the TCI to include internet
access, which previously had not been measured because,
according to the District, the level of connectivity had been
the same for all schools. The Court assumed the District was
also complying with an expedited review and comment schedule
related to the revision. The Court ordered the District to
review the revised TCI, and “to the extent inadequate
internet speeds disproportionately affect Racially
Concentrated schools, ” the Court ordered the District
to develop a plan for correcting the disproportionality by
the end of SY 2018-19.” (Order (Doc. 2123) at 139.) On
August 30, 2019, the District filed a Notice of Compliance
(Doc. 2263.)
Since
the Court's directives, the District has upgraded
internet access and main district internet connection.
“Every school has the same type of wireless access
points, installed to the same minimum density
standards.” (TUSD Reply (Doc. 2321) at 2.) “Each
school has equipment of the same type and with the same
capacity connecting the school to the main District internet
connection.” Id. It is undisputed that:
“(a) there is no disparity in the availability of
internet access anywhere in the District, and (b) the entire
system is overdesigned with significantly more capacity than
is needed at every level at every school.” Id.
It is
also undisputed that the District did not comply with the
Court's directive to engage in an expedited review and
comment process regarding the TCI revision. See
e.g., (TUSD Reply (Doc. 2321) (criticizing Mendoza's
objections for being outdated after the District's broad
overhaul of its systems, which had already been undertaken
when the Court issued the September 6, 2018, Order). It
appears that the District tested the system district-wide
during the spring of 2018 and spring of 2019, [4] (TUSD Reply (Doc.
2321) at 3), but did not comply with the Court's order to
include the internet access scores in the TCI. The District
argues it is unnecessary to measure internet access in the
TCI because all schools have the same level of connectivity.
Id. at 4.
The
Court rejects the District's excuse for non-compliance
with the Court's order to include internet access in the
TCI. It does not matter that all the schools may currently
have the same internet access score, this may not be the case
in the future as internet technology changes.[5] The District
shall comply with the Court's order to add a measure of
internet access for each school to the TCI. (Special
Master's R&R (Doc. 2321) at 3 (recommending internet
access be added to TCI and assessed during next regular
testing of capacity.)
Accordingly,
IT
IS ORDERED that the Special Master's Reports and
Recommendations (Docs. 2345, 2348, 2350 and 2357) are ADOPTED
IN PART AND DENIED IN PART.
IT
IS FURTHER ORDERED that the work set out in the
completion plan for attaining unitary status related to the
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